What is Discovery? Responding to Discovery

The purpose of the discovery rules in Texas is to facilitate a cost-efficient transfer of information between opposing parties in a lawsuit. The rules seek to accomplish this goal by providing parties with notice of how discovery should be conducted, explaining what may be requested, and the proper form of how to request it.

What is Discovery?

Discovery is the transfer of information from one party to another party or multiple other parties. It is an immensely important function in litigation because in all likelihood the information you need to win your case will come, at least in part, from the other side during discovery.

In a world of extreme competition, why would the legal system require one side to provide the other with potentially damning information? In a word, fairness. Sharing information between the parties is but a subpart to broader goals of the law, which is to deal in good-faith with one another.

Discovery allows for a more expedient trial. One, because it provides the parties with dates that they must abide by to turn over the information. Secondly, it puts the other party on notice of information the other side plans to use against them, and the legal theories that will accompany that information.

The two sides in the litigation are still adversarial, to say the least, but the right to a fair trial is at the heart of the American system.

Please do not misunderstand me, it is not like discovery is always a field of flowers to get from the other side. And it is not like there cannot be contention between what should and should not be shared between the parties. There is also abuse of discovery. Sometimes what one party requests of another is a huge burden to obtain, or it is very costly. Then there are the times when you just are not exactly sure of the scope of the request. Situations such as these will be discussed in further detail below.

Responding to Discovery

Responding to discovery is all at once a complicated and very simple process. Usually it is not incredibly difficult to understand what has been requested by an opposing party during discovery. What makes it difficult is to comply with the response by getting the information and returning it on time. The standard time frame for responding to all types of discovery is 30 days under the Texas rules. There is an exception to the 30 days rule if the request for discovery is received prior to sending in the defendant’s original answer. The parties can, at there discretion, or by order of the court, set their own time period for discovery.

Responses to discovery must be made in writing (or whichever format or type of discovery requested), and must form a complete response to the question or request for production or inspection of documents, etc.. An objection, or assertion of privilege, if the legal and factual bases for their assertion is proffered, will act as a complete response to the request because it is your complete and full response to their request. If the other side would like to argue about it, they have the opportunity to request a hearing before the court regarding that objection or assertion of privilege, and the court can decide whether or not the assertion of the privilege or objection is proper.

If the court overrules the objection or assertion of privilege, the party losing the assertion would do well to object and make an offer of proof (statement to the court arguing why you believe the assertion should stand) and ask that the objection be preserved on the record. By doing so, you preserve the record on appeal, so that in the event there is an appeal, the ruling on the assertion may be argued on appeal and possibly overturned.

Objections, Privileges, and Exemption: Know the Difference!

There are three powerful tools at the respondents’ disposal that provide a means for not complying with some or all of the requested discovery materials. Two of which were discussed briefly above, the objection and the assertion of privilege. The third, the exemption, is handled in a much different way by the courts.

The Objection

An objection is usually made because there is something about the request that subjects it to repudiation by the responding party. The most common objections are claims that the request is overly broad, cumulative, duplicative, does not state with sufficient clarity the item for inspection or some other combination of the above. In a single discovery request, if the responding party objects to half of the requests, they must object to each one individually and state the legal or factual basis for the objections. It is a line-by-line procedure.

When something is said to be “overly broad”, it usually means that the requested information is outside of the requisite relevancy to the litigation. All information requested under the rules of discovery in Texas must be relevant to the litigation, and must appear to be reasonably calculated to lead to the discovery of admissible evidence at trial.

If a party makes the claim that the request is overly broad, they must explain in what way the request is overly broad. First, provide the legal bases for why the request is “overly broad”. Is the requested information irrelevant to the case? Does it appear to be reasonably calculated to lead to the discovery of admissible evidence? Second, provide the factual basis for the objection. These will be determined on a case by case basis as the facts of each case are different.

The Privilege

A second type of protection from disclosure is the privilege. The privilege is a function of the law that protects certain type of information from disclosure to the opposing party. Spousal privilege and attorney-client privilege are the greatest examples under the Texas rules. As with objections, all assertions of privilege must be made in writing to the other party. It must state the privilege asserted, and state the information or materials that is being withheld due to the privilege. An example of a privilege would be where a spouse has been subpoenaed to testify against her own husband in a trial or hearing. She would be protected from having to testify against her husband under the spousal privilege.

The Exemption

The last type of protection is the exemption from discovery. A good example of an exempted material is an attorney’s work-product. It is probably the biggest example of an exemption because an attorney has his or her own work product in every single case. This would likely include communications between attorney and staff or other attorneys working with him on the case, as well documents prepared in advance of litigation to prepare for the lawsuit, such as notes, and memoranda. If an attorney had to hand over work-product, they would be providing the opposing party more than just an idea of where they plan on going with their case, but they’d essentially be handing them the keys to their case.

To be exempt under work-product, the documents must have been created or made by the lawyer in conjunction with legal services provided for the current litigation and the current client. It cannot be from a prior case or a related case. Unlike the objection or an assertion of privilege, an assertion that the information requested is exempt from discovery does not have to be made in writing. Essentially, the other party does not even have to be notified that the information requested is being withheld. The responding party can simply disregard the request.

Tips For Responding to Discovery

Several factors come into play when thinking about just how to respond to a discovery request. The important thing to remember is that making full and complete responses is the goal. This is true regardless of whether you are answering their request by providing what they asked for or objecting to it. Whatever you do, never leave a question blank. Even if you are stating that the information is exempt, or asserting that the information is not discloseable. You are required to make a full and complete response.

When the Cost Outweighs the Benefits

When looking at a discovery request, you must ask yourself, “what is the cost of responding to this request relative to the value of the claim?” Unreasonable cost would be a valid objection. Requests that are overly burdensome are also likely to be overly broad because the way they are worded expands the scope of the request and creates a greater burden on the responding party for trying to complete the request. For example, if the cost of providing the information will cost Corporation A $200,000, but the value of the claim against Corporation A is only $100,000, would it be unreasonable for the court to require Corporation A to provide that information? There is very a good chance that it would be unreasonable. Because of this, the court would likely require Corporation A to provide another form or type of information to complete the response that is less costly. If the court did not provide Corporation A with a means to object to the cost as unduly burdensome, what is the likelihood that Corporation A settled with the requesting party as opposed to completing the request and continuing on in the litigation? They’d probably settle. Without the ability to object to such requests, plaintiff’s or defendant’s could easily misuse the system and make requests that squeezed at the pocket book of the opposing party until they were forced to settle or back away from their claims.

Requests that are Overly Broad

As discussed earlier, discovery requests can be overly broad or request irrelevant information. An overly broad question can do several things: (1) it can log jam discovery by creating a burden on the party trying to figure out what the request means, and how to comply with it, or (2) it is meant to drive up the cost of litigation. If the information requested is quite costly, then it might incline the responding party to settle or back down from the action for fear of the expense.

Do Not Let Them Go Fishing!

When a party requests information that is irrelevant, that type of request considered a “fishing expedition” and can be objected as such. When a party goes on a “fishing expedition”, they are likely seeking additional information outside of the scope of discovery for potential new parties and new claims, or they just do not have a particularly strong case, and they are fishing for anything they can catch.

Duplicative Requests

If the request seeks information that has already disclosed, then it is considered to be duplicative. It is key for an attorney to keep an eye out for these types of requests. They are time-consuming, and costly. Objecting to this type of request does not hurt anyone involved. Simply object to the information as duplicative and provide the type of information that was sent previously and in what format.

Get it Yourself!

If the request seeks information that can be obtained in some reasonable manner, an objection should be made. This type of request amounts to having the other party do their due diligence for them. It is unnecessary to request another party to provide you information that is reasonably and easily obtainable for yourself. It is a common sense objection.

Be Sure of the Time and Place

Every request for discovery will have a time and place provided to the responding party to advise when and where the discovery should be sent. If the time and place provided is unreasonable or burdensome, then request that it be changed. This must be done in writing, prior to the deadline for returning the requested discovery documents and items.

Conclusion

Overall, it is important to pay close attention to each and every discovery request. There are procedures in place that require the responding to party to comply with the requests, but there are safeguards from unreasonable requests. It is important for an attorney to be keenly aware of what is being requested, why it is being requested, and how it is being requested, in order to fully comply with the discovery rules in Texas and provide the absolute best legal aide to their clients. It is important to keep the scope of discovery in mind while going through a discovery request. Is the request going to be costly? Too costly? If you find yourself asking what a question means, then you may want to think about an objection for it being vague, overly broad, or unduly burdensome.